Reassessing the new commonwealth model of constitutionalism

International Journal of Constitutional Law

Volumn 8, Issue 2, 2010, Pages 167-206

  Gardbaum, Stephen ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 77955956199     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moq007     Document Type: Article

References (164)

1. Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. j. Comp. L. 707 (2001).
2. Others have subsequently used different terms. Mark Tushnet prefers " weak-form" judicial review, for which see Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev. (2003).
3. Janet Hiebert, the " parliamentary bill of rights model," for which see Janet Hiebert, Parliamentary Bills of Rights: An Alternative Model?, 69 Mod. L. Rev. 7 (2006).
4. The phrase " the dialogue model" has also gained currency. For clarification, in using my term, I did not intend to suggest any conceptual connection between the new model and Westminster-based parliamentary systems such that the model is only open to them, any more than I intended such a connection between the contrasting " American model" (which I argued was adopted by most post-1945 constitutions around the world) and countries in the Western hemisphere. The labels were selected for the historical facts of where the models were first-and, in the case of the new Commonwealth model, still only-employed. Although only very lightly wedded to my term, I explain in the course of the article why I think the second term is under-and the third over-inclusive.
5. These are the ACT Human Rights Act of 2004 and the Victorian Charter of Human Rights and Responsibilities of 2006
6. Very briefly, the model of judicial supremacy posits (1) the constitution, including a bill of rights, as the supreme law of the land; (2) entrenchment of the constitution and its bill of rights against ordinary majoritarian amendment; and (3) judicial enforcement via the power to invalidate or disapply legislation and other inconsistent governmental actions, against whose decisions the political branches are powerless to act by ordinary majority vote. This third feature is what Mark Tushnet refers to as " strong-form" judicial review, see Tushnet supra note 2. Among the many countries to have adopted this model since 1945, the specific institutionalization of such judicial review varies-most notably between centralized and decentralized judicial review-although the acceptance of these three fundamental principles does not; rather, these are variations on a theme. Accordingly, a constitutional bill of rights without a legislative override power that may be amended by legislative supermajority, such as the ones in South Africa and India, does not satisfy the third feature of the new model. That said, the more weakly a constitution is entrenched against ordinary majority vote, the closer it is to the new model on a spectrum. By contrast, amendment of a bill of rights by ordinary majority vote would satisfy the third feature of the new model.
7. This term has been particularly championed by Janet Hiebert.
8. Hiebert and Grant Huscroft are among the scholars who have expressed this view.
9. " Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." Canadian Charter, section 33 (1).
10. In fact, Canada was in this camp even before the 1982 Charter as a result of the 1960 Canadian Bill of Rights Act, a statutory bill of rights that is still in force. Indeed, as mentioned in the following paragraph of the text, the CBOR remains as a distinct version of the new model with its (implied) power of judicial invalidation of statutes.
11. See infra text accompanying notes 71-72.
12. I borrow this term from Alan Bruder, Constitutional Goods (2004).
13. A " reallocation" does not necessarily mean a " transfer" of power from one institution to the other. Thus, in being given the two new powers of declaring an incompatibility and interpreting statutes in a rights-consistent way wherever possible, U.K. courts are not exercising powers previously held by Parliament.
14. See Aileen Kavanagh, Constitutional Review Under the Uk Human Rights Act 277-278 (2009).
15. Mattias Kumm, Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review, 1 E.J.L.S. (2009).
16. Among those contributing to this recent crystallization of the issues are Richard Bellamy, Political Constitutionalism: A Republican Defense of the Constitutionality of Democracy (2007).
17. Wojciech Sadurski, Judicial Review and the Protection of Constitutional Rights, 22 O.J.L.S. 275 (2002).
18. Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1348 (2006).
19. Indeed, Mattias Kumm explicitly suggests that the new model is one way that " Socratic contestation" might be institutionalized.
20. See Mattias Kumm, Democracy is Not Enough: Rights, Proportionality and the Point of Judicial Review, in M. KLATT ED., THE LEGAL PHILOSOPHY OF ROBERT ALEXY (2009) (" what deserves a great deal of thought is how to design the procedures and institutions that institutionalize Socratic contestation... Should judges just have the power to declare a law incompatible with human rights, leaving it to the legislature to abolish or maintain the law? [citing The New Commonwealth Model of Constitutionalism]").
21. Richard Fallon, The Core of the Uneasy Case for Judicial Review, 121 HARV. L. REV. 1693, 1733-34 (2008) (suggesting that the choice between strong and weak forms of judicial review is a " design question" within the overall institution that he is defending, and that the desirability of one or the other may depend contextually on the " pathological proclivities" of particular societies).
22. See Waldron, at 1354 (" The most important difference [among systems of judicial review] is between what I shall call strong judicial review and weak judicial review. My target is strong judicial review.")
23. Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights-and Democracy-Based Worries, 38 Wake For. L. Rev. 813, 814 (2003).
24. See, e.g., Mary Ann Glendon, Rights Talk (199).
25. Alec Stone Sweet, Governing with Judges: Constitutional Politics in Europe (2000).
26. For an early identification, see James Bradley Thayer, John Marshall (1901).
27. Here, I am contrasting the traditional residual common law conception of rights as whatever the law does not prohibit with an affirmative conception of rights as presumptive claims against the state. In particular, I am not referring to the standard distinction between positive and negative constitutional rights.
28. The classic work here is Keith Ewing and Conor Gearty, Freedom Under Thatcher (1990).
29. See, e.g., Alexander Bickel, The Least Dangerous Branch (1962).
30. Rosalind Dixon, The Supreme Court of Canada, Charter Dialogue and Deference, 47 Osgoode Hall L. J. 235 (2009).
31. Michael J. Perry, Protecting Human Rights in a Democracy: What Role for Courts?, 38 Wake For. l. Rev. 635 (2003).
32. Grant Huscroft, Constitutionalism from the Top Down, 45 Osgoode Hall L.J. 91 (2007).
33. Indeed, Janet Hiebert has argued that such political rights review (i.e., parliamentary consideration and interpretation of rights before rather than after judicial review) is what " most distinguishes rights practices in Canada and the UK from the US".
34. Janet Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?, 82 Tex. L.Rev. 1963 (2004).
35. These potential costs have recently been well-canvassed in James Allan, The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism, 30 Melbourne Univ. L. Rev. 880 (2006).
36. See Tushnet, for general or theoretical reasons to fear such instability in either direction. As we will see, this claim of instability has been the basis for many critiques of the actual practices in each country.
37. For an example of such alleged usurpation, see City of Boerne v. Flores, 521 U.S. 526 (1997).
38. This critique of judicial supremacy, among others, is made in Jeremy Waldron, Some Models of Dialogue Between Judges and Legislators, 23 Sup. Ct. L. Rev., 7, 39-46 (2004).
39. Under Section 33, Canadian legislatures may also override rights preemptively; i.e., immunize them against future judicial review.
40. Hiebert uses this term to describe what she views as the subservience of Canadian and U.K. legislatures to the courts. See Hiebert.
41. Hiebert and Tushnet are among the exceptions
42. Mark Tushnet, Weak-Form Judicial Review: Its Implications for Legislatures, 23 Sup. Ct. L. Rev., 213, 224 (2004).
43. James Allan, You Read Words In, You Read Words Out, You Take Parliament's Clear Intention and You Shake It All About, ssrn abstract number 1443626.
44. Although it is sometimes suggested that legislatures do not have the legal power of the final word under section 33 because, when an override expires at the end of five years, the original court decision is reinstated.
45. Of course, there are other Canadian commentators, those who oppose section 33 and support judicial supremacy, who applaud this development.
46. See Peter W. Hogg and Alison A. Bushell, The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All), 35 Osgoode Hall L.J. (1997).
47. Peter W. Hogg, Alison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited-Or " Much Ado About Metaphors," 45 Osgoode Hall L.J. 1 (2007).
48. Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001).
49. Kent Roach, Dialogic Judicial Review and its Critics, 23 Sup. Ct. L. Rev. 49 (2004).
50. Kent Roach, Sharpening the Dialogue Debate: The Next Decade of Scholarship, 45 Osgoode Hall L.J. 169 (2007).
51. See the Australian debate; for example, the National Consultation Committee's Report recommending adoption of " the dialogue model" by enacting a national human rights act.
52. See, e.g., Alison Young, Parliamentary Sovereignty and the Human Rights Act 115-143 (2009).
53. Tom Hickman, Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998, 2005 Pub. L. 306.
54. A version of section 33, but, importantly, with a two-thirds majority requirement, was adopted in Poland between 1986 and 1997 and Romania until 2003, and the VCHRR contains a statutory version in section 31.
55. Vriend v. Alberta, [1998] 1 S.C.R. 493.
56. Tsvi Kahana, The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter, 44 Can. Public Admin., 255 (2001).
57. Perhaps R. v. Sharpe, [2001] 1 S.C.R. 45-a case in which, rather than striking down the statute, the SCC read down the scope of the offense of possession of child pornography even when it was clear that Parliament had intended the offense to cover such matters and found the reduced scope of the statute a permissible limitation on free expression under section 1-and the somewhat similar case of R. v. Butler, [1992] 1 S.C.R. 452 provide the best examples of the SCC operating under the shadow of section 33.
58. But cf. Sujit Choudhry and Claire Hunter, Measuring Judicial Activism on the Supreme Court of Canada, 48 McGILL L. REV. 3 (2003).
59. On the other hand, it has also been suggested, by me for one (see infra TAN 156), that courts exercising the power of penultimate, rather than ultimate, judicial review might be expected to be bolder in their interpretation and application of rights, freed as they are from the full practical responsibility for their rights decisions.
60. See Janet Hiebert, Is it Too Late to Rehabilitate Canada's Notwithstanding Clause, 23 Sup. Ct. L. Rev. 169 (2004).
61. Jeff Goldsworthy, Judicial Review, Legislative Override, and Democracy, 38 Wake For. L. Rev. 451 (2003).
62. Section 36, VCHRR.
63. Look in the index of any book on the Canadian Charter and you will find long and multiple entries under " dialogue."
64. Kent Roach, Dialogic Judicial Review and its Critics, 23 Sup. Ct. L. Rev. 49, 55 (2004).
65. As Barry Friedman has exhaustively charted between the judiciary and public opinion.
66. See Barry Friedman, The Will of the People (2009).
67. General or special limitations clauses are part of what Lorraine Weinrib has characterized as the " postwar paradigm".
68. Lorraine Weinrib, The Postwar Paradigm and American Exceptionalism, in Sujit Choudhry ed., The Migration of Constitutional Ideas (2006).
69. See Stephen Gardbaum, Limiting Constitutional Rights, Ucla L. Rev. (2007).
70. See Sujit Choudhry, So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter's Section 1, (2006), 34 S.C.L.R. (2d).
71. Abstract judicial review in centralized systems has a generally similar, constrained dialogue-inducing feature of setting constitutional parameters within which legislatures can make their choices. The South African constitution expressly grants this power to the courts and the German Constitutional Court has developed a range of equivalent techniques, including finding statutes unconstitutional but not void (" unvereinbar" versus " nichtig")-meaning they are in force during a transition period pending correction by the legislature-and upholding statutes but warning they will be invalidated in future if not amended or repealed.
72. See Jamie Cameron, The Charter's Legislative Override: Feat or Figment of the Constitutional Imagination?, 23 Sup. Ct. L. Rev. 135 (2004).
73. Although, I suppose, it is conceivable that this practice itself owes something to the shadow of section 33.
74. Paul Rishworth, The Inevitability of Judicial Review under " Interpretive" Bills of Rights: Canada's Legacy to New Zealand and Commonwealth Constitutionalism?, 23 SUP. CT. L. REV. 135 (2004).
75. As Andrew and Petra Butler note, there is, as well, a lot on criminal procedure and, for example, nothing on education, privacy, or property rights.
76. See Andrew s. Butler and Petra Butler, the New Zealand Bill of Rights Act: a Commentary 4 (2005).
77. NZBORA, section 7.
78. " No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights)-(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or (b) Decline to apply any provision of the enactment-by reason only that the provision is inconsistent with any provision of this Bill of Rights." NZBORA, section 4.
79. This was in the same case where the power was implied: R. v. Drybones, [1970] S.C.R. 282. In most other respects, however, the SCC is generally thought to have underenforced the CBOR.
80. Although not stated in so many words, this power has been taken to follow from the facts that (a) NZBORA applies to the legislative, executive, and judicial branches of government but (b) only legislation.
81. Indeed, because of the express ouster of the normal doctrine of the implied repeal of an inconsistent earlier statute by NZBORA contained in section 4, NZBORA, in this sense, has less-than ordinary statute status.
82. Ministry of Transport v. Noort [1992] 3 NZLR 260 (CA).
83. Simpson v. Attorney-General [Baigent's Case] [1994] 3 NZLR 667 (CA).
84. Moonen v. Board of Film and Literature Board [2000] 2 NZLR 9 (CA).
85. The major remaining difference is the contextual factor, namely, that U.K. courts work within large shadow of the ECtHR whereas NZ courts have no such equivalently effective international oversight.
86. Grant Huscroft, Reconciling Duty and Discretion: The Attorney General in the Charter Era, available at ssrn.com/abstract=1326706.
87. The Communications Act, 2003.
88. See Paul Rishworth, Grant Huscroft, Scott Optician, Richard Mahoney, The New Zealand Bill of Rights 143-147 (2003)
89. R (on the application of Anderson) v. Secretary of State for the Home Department, [2002] UKHL 46 (" to do so would not be judicial interpretation but judicial vandalism," Lord Bingham at para. [30]).
90. Quilter v. Attorney-General [1998] 1 NZLR 523 (CA).
91. Petra & Andrew Butler, 16 Years of the New Zealand Bill of Rights (manuscript on file with author).
92. R v. Phillips [1991] 3 NZLR 175 (CA), affirmed in R v. Hansen [2007] NZSC 7 (SC); cf R. v. Lambert [2001] UKHL 37.
93. Flickinger v. Crown Colony of Hong Kong [1991] 1 NZLR 439 (CA); R v. Poumako [2000] 2 NZLR 695 (CA); R v. Pora [2001] 2 NZLR 37 (CA).
94. Paul Rishworth, Interpreting Enactments: Sections 4, 5, and 6, in Rishworth et al., The New Zealand Bill of Rights.
95. Indeed, contra Rishworth, they claim that " reliance on Section 4 has been substantial."
96. See also Michael Taggart, Tugging on Superman's Cape, in Constitutional Reform in the United Kingdom: Practice and Principles 85-97 (1998).
97. Grant Huscroft & Paul Rishworth, " You Say You Want a Revolution" : Bills of Rights in the Age of Human Rights, in David Dyzenhaus, Murray Hunt, Grant Huscroft eds., A Simple Common Lawyer: Essays in Honour of Michael Taggart (2009).
98. See Grant Huscroft, Civil Remedies for Breach of the Bill of Rights, in Rishworth et al, at 837.
99. Keith Ewing, The Futility of the Human Rights Act, [2004] Pub. L. 829.
100. Keith Ewing & J. Tham, The Continuing Futility of the Human Rights Act, [2008] Pub.L. 668.
101. Not, however, that Ewing supports a stronger bill of rights or judicial review, as a well-known opponent of both.
102. For example, Ian Leigh, Concluding Remarks, in Helen Fenwick, Gavin Phillipson, and Roger Masterman, eds., Judicial Reasoning under the UK Human Rights Act 443 (2007) (" Minimalism is the dominant mode of (judicial) reasoning. An interim term report [of the judiciary's performance] would be along the lines of 'tries hard, could do better')." " Minimalism" was described in an important judgment by Lord Bingham as the proper mode of interpretation, under which U.K. courts should not expand the Convention rights beyond their interpretation by the ECtHR. See R. (on the Application of Ullah) v. Special Administrator [2004] UKHL 26.
103. See Roger Masterman, Aspiration or Foundation? The Status of the Strasbourg Jurisprudence and the 'Convention Rights' in Domestic Law.
104. Adam Tomkins, The Rule of Law in Blair's Britain, 26 U. Queensland L.J. 255 (2007).
105. Robert Wintermute, The Human Rights Act's First Five Years: Too Strong, Too Weak, or Just Right?, 17 King's Coll. L.J. 209 (2006).
106. Danny Nicol, The Human Rights Act and the Politicians, 24 Leg. Stud. 451 (2004).
107. Ian Leigh & Roger Masterman, Making Rights Real: The Human Rights Act in its First Decade 118 (2008).
108. This group includes Alison Young, Conor Gearty, and David Feldman.
109. Department of Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006).
110. The political future of the HRA remains uncertain, even after the recent election and change of government. Absent any sort of public consultation, it has never been particularly popular-many of the most visible cases have been perceived as protecting terrorists and asylum seekers. The opposition Conservative Party had promised to repeal the HRA if elected and replace it with a " British bill of rights" of unspecifiedcontent and status but, constrained by its pro-ECHR Liberal Democrat partners, the new coalition government has agreed only to establish an independent commission to review the HRA. More generally, the political futures of Canada's section 33 and the NZBORA look a little more stable. Despite the positive recommendation of the National Consultation Committee that it had established, the current Labor government in Australia recently announced that it will not introduce a national human rights act.
111. A and others v. Secretary of State for the Home Department [2004] UKHL 56.
112. Boumedienne v. Bush, 553 U.S. 723 (2008), and Hamdi v. Rumsfeld, 542 U.S. 507 (2004), have come the closest. In Boumedienne, the Supreme Court held that aliens held at Guantanamo Bay are protected by the constitutional right to habeas corpus and so can raise constitutional claims against their detention by the U.S. government. Cases raising the merits of these claims are now making their way through the U.S. federal court system, with several detainees ordered released by the lower courts. Although in Hamdi the Supreme Court held that in the case of a U.S. citizen due process requires some opportunity to challenge the factual basis of the government's determination of enemy combatant status, only the dissenting justices clearly found a constitutional violation in the case.
113. Secretary of State for the Home Department v. JJ and others [2007] UKHL 45.
114. Ghaidan v. Godin-Mendoza [2004] UKHL 30.
115. R v. Lambert.
116. A section 3 interpretation of the statutory provision consistent with the article 14 prohibition of discrimination on grounds of national origin was not possible because the statutory provision expressly applied only to foreign terror suspects. Moreover, given the DI, judicial invalidation of the executive orders for indefinite detention was not possible, under section 6 (2) (b) of the HRA. This provision states: " 6 (1). It is unlawful for a public authority to act in a way which is incompatible with a Convention right. (2) Subsection (1) does not apply to an act if? ... (b) In the case of one or more provisions of... primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce the provisions."
117. Janet Hiebert, Parliament and the Human Rights Act: Can the JCHR Help Facilitate a Culture of Rights, 4 ICON 1 (2006)
118. See, e.g., Hiebert id.; Francesca Klug & H. Wildbore, Breaking New Ground: the Joint Committee on Human Rights and the Role of Parliament in Human Rights Compliance, European Human Rights Law Review 231 (2007).
119. Of course, Ewing makes this argument about reversion as part of his futility thesis even though Parliament has complied, or is in the process of complying, with all surviving declarations of incompatibility.
120. These cases suggest, perhaps, a more valid criticism of the courts as more comfortable reviewing executive action than the underlying legislation for HRA compatibility.
121. see Ewing, The Continuing Futility of the Human Rights Act. Again, this may be due not to parliamentary sovereignty but to the fact that this way, unlike under section 4, they can grant a remedy to the complainant.
122. See Alison L. Young, The Practicalities of Dialogue: Is Dialogue Working under the Human Rights Act 1998? (manuscript on file with author).
123. " If Parliament disagrees with an interpretation by the courts under Section 3(1), it is free to override it by amending the legislation and expressly reinstating the incompatibility".
124. For example, Congress has over the last couple of years been in the process of overriding several restrictive, proemployer interpretations of the 1964 Civil Rights Act and other antidiscrimination statutes.
125. " This section [section 3] does not affect the validity, continuing operation or enforcement of any incompatible.
126. see Conor Gearty, Reconciling Parliamentary Democracy and Human Rights, 118 L.Q.R. 249 (2002).
127. Fitzpatrick v. Sterling Housing Association Ltd [2001] 1 A.C. 27. For a detailed discussion of the differences between the two cases, see Kavanagh. More generally, however, Kavanagh argues that the courts do not have radically new interpretive powers under the HRA; the difference is primarily that they have used their powers more frequently and with a greater sense of legitimacy.
128. Alec Samuels, Human Rights Act 1998 Section 3: A New Dimension to Statutory Interpretation?, 29 Statute L. Rev. 130, 138 (2008).
129. On limits, see infra text accompanying notes 122-127.
130. R. v. A (No 2) [2002] 1 AC 45.
131. R. v. Her Majesty's Commissioners of Inland Revenue ex parte Wilkinson [2005] UKHL 30.
132. Id (emphasis in original).
133. At the time of HRA's enactment, no other system of constitutional review of legislation in the world-domestic or international, past or present-contained the same or a similar judicial power. As we have seen, this power was subsequently implied by the New Zealand Court of Appeal, although, so far, not clearly used. It was also enacted as part of both the ACT HRA and the VCHRR. The SCC's suspended declaration.
134. In the EU, the Marleasing case imposed a duty on all national courts to interpret domestic law in line with untransposed directives wherever possible to do so; Marleasing SA v. La Comercial Internacionale.
135. Pierre Legrand, The Same and the Different, in Pierre Legrand and Rodney Maunday eds, Comparative Legal Studies: Traditions and Transitions (2003).
136. 410 U.S. 113 (1973).
137. German Classroom Crucifix Case II, 93 BverfGE 1 (1995).
138. European Convention on Human Rights Act, 2003 (Ireland).
139. Fitzpatrick v Sterling Housing Association Ltd [2001] 1 A.C. 27.
140. Indeed, Ian Leigh and Roger Masterman have argued that in the U.K. context there has been " neglect" of the first (" and most important") criterion of success in favor of the second.
141. Ian Leigh and Roger Masterman, Making Rights Real: The Human Rights Act in its First Decade 235 (2008).
142. Aileen Kavanagh, Choosing between Sections 3 and 4 of the Human Rights Act 1998: Judicial Reasoning after Ghaidan v, Mendoza, in Helen Fenwick, Gavin Phillipson, Roger Masterman eds., Judicial Reasoning Under the Human Rights Act (2007) (remedial concerns have been central to the courts' use of section 3 versus section 4).
143. Rosalind Dixon, A Minimalist Charter of Rights for Australia: The UK or Canada as a Model? 37 Federal L. Rev. 335 (2009).
144. HRA, Schedule 2, Section 10, para. 1(1) (b): " A remedial order may be made so as to have effect from a date earlier than that on which it is made."
145. So far, " no amendments [to legislation in response to a DI] have been given retrospective effect so as to afford.
146. See Jack Beatson, Stephen Grosz, Tom Hickman, Rabinder Singh, Human Rights: Judicial Protection in the United Kingdom 37 (2008).
147. This has also been proposed by the JCHR as the last of five recommended steps the government should take to try and persuade the ECtHR that the DI is or has become an effective remedy. See JCHR, Sixteenth Report of Session 2006-07, Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights, HL 128, HC 728, para. 119 (" [These steps should include] ensuring that any legislative solution makes the necessary provision to afford a remedy to the applicants affected by the identified incompatibility").
148. European Convention on Human Rights Act 2003 (Ireland), §5(4) (c). In addition, Canadian legislatures have occasionally given legislation responding to Supreme Court of Canada decisions retroactive effect. For an article discussing this phenomenon in Canada and advocating that the courts adopt a general interpretive presumption that such legislation have retroactive effect.
149. see Sujit Choudhry and Kent Roach, Putting the Past Behind Us? Prospective Judicial and Legislative Constitutional Remedies, 21 Supreme Court Law Review (2d) 205 (2003).
150. See JCHR Sixteenth Report of Session 2006-07, at 10, citing the relevant ECtHR judgments to this effect. Indeed, such legislative compensation may thus also be a way of preempting a subsequent successful appeal to the ECtHR following a DI.
151. Whether in the HRA context it is problematic from the perspective of the ECHR right to an effective remedy, left unincorporated by the HRA, is a different issue and one the ECtHR may soon answer and so preempt.
152. Neither of two recent works on retroactivity addresses this precise point (as distinct from another issue, namely, to which events and causes of action.
153. Ben Juratowitch, Retroactivity and the Common Law (2008).
154. David Mead, Rights, Relationships and Retrospectivity: The Impact of Convention Rights on Pre-Existing Private Relationships Following Wilson and Ghaidan, [2005] Pub. L. 459.
155. There is some language in HRA relevant to the entirely different issue of whether and when HRA applies to events occurring or causes of action brought prior to its coming into effect on October 1, 2009. On this issue, and not without a good deal of controversy, the courts have so far generally held that HRA does not apply.
156. 155 Burden and Burden v. United Kingdom, 44 EHRR 51 (2007).
157. Even if, contrary to what I have argued above, the ECtHR were to hold that the ECHR prohibits such legislative or executive remedies, this obviously would not apply to New Zealand or Australia, or to the model generally.
158. This would have been the remedy afforded by the ECtHR in Karner v. Austria, an essentially identical case to Ghaidan decided a year earlier, had the complainant survived or left beneficiaries of his estate. (2003) 2. F.L.R. 623.
159. Andrew & Petra Butler, at 1116.
160. ACT HRA, section 30; VCHRR, section 31 (1).
161. Caroline Evans and Simon Evans, Australian Bills of Rights (2008).
162. Roger Masterman, Interpretations, Declarations and Dialogue: Rights Protection under the Human Rights Act and Victorian Charter of Human Rights and Responsibilities, [2009] Pub. L. 112.
163. Although the process was not repeated when the next vacancy arose, in 2008.
164. Although premised on the traditional two choices only, I am generally persuaded by Wojciech Sadurski's argument that context is important to the issue of which type of legal regime best protects rights.